-- THE ARCHIVE --

MALAYSIA
Judicial CP - December 2010

The Borneo Post, Kuching, 3 December 2010

Jail sentence, whipping enhanced

KOTA KINABALU: A Pakistani would spend more time behind bars
after his eight years' jail sentence for causing grievous hurt to
his wife, a 41-year-old local, was increased to 12 years by the
High Court here yesterday.

Apart from substituting the jail terms, Chief Judge of Sabah
and Sarawak Tan Sri Richard Malanjum also enhanced 31-year-old
Khalid Nawab Lal Nawab's four strokes of the cane to six strokes.

"I am of the view that the sentence imposed on the
respondent (Khalid) is grossly inadequate," said Malanjum in
allowing the prosecution's appeal against the eight years' jail
sentence and four strokes of the cane imposed by a Sessions Court
here on Khalid.

On May 7, this year, the Sessions Court imposed the jail and
whipping sentence on Khalid after he pleaded guilty to causing
grievous hurt to his wife with a machete at an unnumbered house
in Phase 2, Telipok Ria, Tuaran at 8.53am on May 6, 2009.

He was charged under Section 326 of the Penal Code which
provides for a jail term of up to 20 years and whipping, on
conviction.

Earlier, senior federal counsel Salim Soib Ahmad told the
court that the sentence imposed by the Sessions Court was
inadequate and not suitable if compared with the injuries
sustained by the victim.

"The victim would have died if the injuries she
sustained were not treated," Salim said adding that the
respondent stopped attacking his wife only after their neighbours
entered the house by breaking its door.

He said the victim was lucky as her sister was in the house
during the incident and she was the one who sought assistance
from their neighbours.

Click to enlarge

In rebutting Salim's submissions, Khalid's counsel Hamid
Ismail told the court that the respondent was actually a loving
husband and father.

He said that a prosecution witness had testified in court that
he never heard the respondent and his wife quarrel.

"The incident occurred because of something. There was no
manifest error by the judge in passing the sentence. Therefore, I
pray for the appeal to be dismissed and the sentence imposed by
the Sessions Court to remain, "Hamid added.

In passing the sentence, Malanjum said: "This is a sad
case as it involves families but this court must not lose sight
that this is a serious offence being committed."

He said that as a husband, he was supposed to protect the wife
from all harm.

"A clear message must be sent out to would be wife
beaters that if convicted they would face the full force of the
law. I find that the reason the Sessions Court judge in
sentencing the respondent as she did was on the facts that he had
pleaded guilty, thus saving the court's time.

"In my view, the time saving is a secondary issue. It is
the essential point that the sentence must reflect the gravity of
the offence committed. In fact the Sessions Court judge was not
even sure if the respondent was provoked or not," Malanjum
said.

He said that the sentence imposed by the lower court was
grossly inadequate considering the injuries sustained by the
wife, the nature of the offence, the facts and the circumstance
in the case.

Dius was appealing against the custodial sentence and whipping
imposed by High Court registrar Zaini Fishir @ Fisal, who sat as
a Sessions Court judge on June 17, this year.

Zaini sentenced Dius to 15 years' jail and ordered him to be
whipped thrice after he pleaded guilty to raping the 11-year-old
girl at an unnumbered room on the second floor of a shoplot in
Menggatal at 8.15pm on May 8, this year.

He was charged under Section 376 (2) (e) of the Penal Code
which provides for a jail term of between five and 30 years and
whipping on conviction.

Earlier in applying for Dius' sentence to be reduced, Nelson
urged the court to consider the former as a youthful offender.

"They were boyfriend and girlfriend at the time the
offence was committed.

The facts showed that the victim actually went to the
appellant's (Dius) house in the night of the incident," he
said, adding that there was no violence involved.

Nelson applied for Dius to be sent to Henry Gurney School
until he reaches the age of 21 years old or be imposed a minimum
jail term of five years.

In rebutting Nelson's submissions, Eyu said that there was no
evidence to show that Dius and the victim were couples.

Click to enlarge

He said Dius did not show any remorse and in fact the sentence
should be enhanced to reform him to be a better man and also to
deter other would-be offenders from committing a similar offence.

After hearing submissions from both parties, Malanjum held
that he affirmed Duis' sentence imposed by the Sessions Court
even though it was below the range.

He said he had taken into consideration that Dius was a
youthful offender, he and the victim were friends and that the
girl went to his house.

BBC News Online, London, 6 December 2010

Asia-Pacific

Malaysia urged to stop caning 'epidemic'

Caning as a form of judicial punishment in Malaysia has reached
"epidemic" proportions and should be banned, according
to a human rights group.

Blows administered to the body with a long cane are a legal
punishment for more than 60 offences in the country.

Amnesty International claims at least 10,000 prisoners and
6,000 refugees are caned there each year.

The government says caning is a legal and effective deterrent
from criminal activity.

Malaysia's law minister would not comment on the report but
told the BBC that there are no plans to review the law.

Migrant workers

Amnesty says the practice amounts to cruel and inhumane
treatment as it leaves both physical and psychological damage,
and should be banned.

"Across Malaysia, government officials regularly tear
into the flesh of prisoners with rattan canes travelling up to
160km/h. The cane shreds the victim's naked skin, turns the fatty
tissue into pulp, and leaves permanent scars that extend all the
way to muscle fibres," Amnesty says in a report on the
practice.

It estimates that up to 1,200 canings
happen in prison centres each month. Offences that can be
punished by caning include drug-related, violent and sexual
offences, as well as migration violations.

Though the origins of the practice of caning lie in British
colonial regulations dating back to the 19th Century, the
practice has become more widespread in recent years, used by the
government as a means of dealing with the influx of migrant
workers who have helped fuel its booming economy, Amnesty says.

"It's expanded over the past decade," Amnesty's Sam
Zarifi said. "The majority of those punished this way are
illegal migrants."

As the country does not officially recognise refugee status,
those who have fled their homeland to Malaysia without the
correct paperwork are automatically committing a criminal
offence. Many are caned before being deported, the group says.

In 2002, the group says, parliament made immigration
violations such as illegal entry punishable by up to six strokes
of the cane, increasing the use of the punishment in prisons and
detention centres.

Mr Zarifi says that the officials who carry out the task are
specially trained, and receive an additional payment for each
stroke they administer.

In 2005, the report says, this bonus was tripled to 10 ringgit
($3.20; £2) per stroke. This has led to a system of bribes
within prisons, where guards accept cash not to carry out the
punishment, Amnesty says.

According to the report, based on interviews with some 57
prisoners, the punishment often takes place in separate, hidden
areas of the detention centres. Prisoners are tied on to a
specially built scaffold to keep them still while they are being
hit.

Although doctors are present, Amnesty says, their function is
often to revive prisoners who faint during the caning so that the
full number of strokes can be administered.

The refugee's experience

"In the room, there was a specially made chair for
caning. We were made to lie face down on a special type of chair.
Our chest, arms and legs were tied up. We were very afraid.

The caning was very painful. They caned me twice on the
buttocks but each [stroke] landed on a different spot.

Afterwards, I was very weak and I couldn't stand up by myself.
Two people had to take me to another hall and they put some
ointment on my wounds.

Even after a week we didn't dare to touch the wounds with our
hands. My wounds were bleeding a lot. It slowly healed, bit by
bit.

The scar is still there but it no longer hurts. But I've
noticed that, since the caning, my eyes have become worse and
cannot adjust to bright sunlight.

Sometimes I regret coming to Malaysia but it is too dangerous
for me to return to Burma, so I have nowhere else to go."

The Borneo Post, Kuching, 15 December 2010

Three-year jail, whipping for cheating

Click to enlarge

KOTA KINABALU: The magistrates court here yesterday sentenced
a local jobless man to three years in jail and ordered him to be
given nine strokes of the cane after finding him guilty of nine
counts of cheating involving RM98,750.